- Assessing the premises of examination of the case in the group proceedings, the Court examines the statement of claims with regard to the fulfillment of the premises included in Article 6. Article 12 applies in a situation where new participants join to the pending proceedings, who were not covered by the statement of claims, as a result of the issuance of a decision on the announcement on the commencement of group proceedings.
- The factual basis therefore is the same, as each of the members cites being misled and unaware of the conclusion of the agreement despite its factual conclusion, while it is of no importance on what date the agreement was concluded, as that circumstance does not have an impact on the admissibility of the examination of the case in group proceedings. The claim of each of the members should be qualified as based on equal grounds as it is based on identical agreement.
- At the present stage there is a lack of the generation of costs on the side of the defendant, which would create a premise obligating the claimant to secure the costs of the proceedings. The declaration of the defendants alone that they are at the stage of searching for a proxy, does not constitute a sufficient assumption to state that securing the costs of the proceedings is necessary.
The stance included in the thesis no. 1 was questioned by the Court of Appeals in Gdańsk in the decision of 14th May 2013, I ACz 464/13.
- Modification of the statement of claims consisting in bringing forth a new claim in place of the primary one contains a tacit withdrawal of the primary claim. Lodging by the claimant a demand for establishment of liability does not constitute a limitation of the primary demand for payment, but its modification. Both demands are of a spontaneous nature, they are different in terms of content, and they intend to achieve different goals.
- In assumption, the demand for establishment of liability in cases where future group members will be pursuing payment from the defendant should be brought forth when the pecuniary claims of group members are unfit to be standardised in terms of value due to diversification of circumstances pertaining to individual members of the group. Difficulties with standardisation of pecuniary claims of individual group members in the frames of the original action for payment persuaded the claimant to modify the statement of claims for establishment. The best moment for the claimant to perform such a modification is the stage of assessing admissibility of examination of the case in group proceedings. There are no legal provisions limiting admissibility of performance of modification depending on the stage of the proceedings in the first instance, also in group proceedings.
- After modification of the statement of claims, group members pursue their claims in the same in generic terms form of legal protection – for establishment – therefore the claims are homogenous in the meaning of Article 1 section 1 of the Act (Polish Act on pursuing claims in group proceedings). It is only worth highlighting that in Article 1 section 1 the Act uses the claim in the procedural sense.
- The event being the source of the claim in the case of each member of the group is the same – it is the above-described tort [perpetrated by] the defendants, what is more – a complex tort. Yet, the requirement of the same or equal factual basis does not mean the requirement for all elements of the factual grounds in the case of each of the claims to be identical or equal. Existence of one element shared in the scope of factual circumstances constituting the basis of the group members’ claims, i.e. a damage-causing event, is sufficient.
The decision was partially reversed by decision of the Court of Appeals in Krakow of 17th September 2012, file ref. no. I ACz 1324/12. Thesis questioned by the Court was marked in italics.
The decision was reversed in part (in the scope of point 2) by decision of the Court of Appeals in Krakow of 7th December 2011, file ref. no. I ACz 1235/11. The thesis’ questioned by the Court are marked in italics.
- In Article 1 section 1 (unlike in Article 2 section 3), the Act uses the term claim in the procedural meaning. Against the background of the Act, homogenous claims are claims arising from the same type of legal relationship. This does not mean sameness of specific standards constituting the legal basis of the specific claims (substantive law claims). The notion of homogeneity thus understood, litigation claims with their source in one legal relationship, even if various substantive law claims were to arise therefrom, should be recognised as homogenous.
- A factual basis of the claim should be understood as the basic aggregate of facts constituting the basis for the arising of a contentious legal relationship and a specific claim. The scope of the factual basis does not extend to factual circumstances impacting the value, objective scope, or maturity of claims; these elements may, but do not have to be covered by the factual basis of the action.
- The requirement of the same or similar (equal) factual basis does not mean the requirement for all the elements of the factual status to be the same or similar (equal) in the case of each claim. It is enough if there is an element common in the scope of all factual circumstances constituting the basis of the group members’ claims.
- The defendants’ behaviours in a varying degree contributed to the bursting of the flood blank in Koćmierzów, and thus to the effect – damage to the group members’ assets, but they jointly constitute a single tort perpetrated by public authorities. The fact that not all defendants participated in the tort at specific stages thereof does not eliminate their joint and several liability for the damage.
- The defendants’ tort is of complex nature, it consists of an aggregate of interrelated actions and omissions, distributed in time, which led to inflicting damage onto multiple entities. A statement that to adopt the precondition of commonality of the factual basis of the claims is necessary for all group members to derive their claims from the same action or the same omission or the same action and omission of the defendants and that each of the group members should seek claims for compensation of damage of the same type (only damnum emergens or lucrum cessans) does not deserve to be approved. As all claims of the group members’ arise from such a complex tort, then it should be assumed that they are based on the same factual basis and the group members share a bond arising from the unity of the event which resulted in the damage.
- The criterion for separating cases in the frames of categories of claims arising from tort is the legal basis of claims. A group proceedings is admissible in the cases regarding claims pursued on the grounds of provisions of the Civil Code on tort, regardless of the type of events which the Act associates compensatory obligations with and regardless of the principle of liability.
- Common circumstances of the case considered at the standardisation of claim values should be referred to the precondition of commonality of the factual basis (Article 1 section 1 of the Act). However, it is a notion of a meaning narrower than “the same or similar (equal) factual basis”.
- The estimates of the costs of the proceedings are the necessary condition of the motion for security deposit, since the court in determining deposit value should bear in mind a probable total of the costs to be incurred by the defendant.
- The aim of obtaining the verdict establishing the defendant’s liability is to obtain a precedent for possible individual actions of the group members for payment, or a basis for the conclusion of a settlement between the group members and the defendant. The claim included in the statement of claims understood in such a way is of a pecuniary nature, despite the fact that it does not constitute a claim for payment. It is not necessary to indicate the amount of the claim of each of the group members in the statement of claims, and Article 2 section 3 of the Act (Polish Act on pursuing claims in group proceedings) constitutes an exception to the rule of indicating and standardising the amount of the claims of the group members resulting from Article 2 section 1 and Article 6 section 1 point 3 of the Act.
- It may be assumed that in compliance with the rule of the freedom of contracts (Article 3531 of the Civil Code), group members may entrust the function of the group representative to the consumer ombudsman from any city or district in the country. The consumer ombudsman is authorised, but not obligated to be the group representative and if he expresses consent to accept this function, then the issue of the territorial scope of his operation is without meaning for the further proceedings.
- The procedural relations between the group’ representative and the group members were regulated on principle of subrogation, which means that the group representative conducting the proceedings in his own name, but on behalf of all of the group members. The group members are not parties to the group proceedings.
- The premise of the homogeneity of the claims should be understood in such a manner that the requests (demands) resulting from them are common for all of the group members. The statement of claims must therefore include the request (demand) to grant the same form of legal protection for all of the group members.
- The very factual basis of the statement of claims, however, constitutes the basic (initial) aggregate of facts substantiating the claim. The same factual basis of the statement of claims takes place when obtaining legal protection is connected with an identical situation or event. Whereas it is possible to speak of equal factual basis in a situation in which the claims are derived from merely similar situations and events.
- The notion of cases regarding consumer protection also includes the establishment of contractual liability, connected with the issue of the non-performance or the improper performance of the obligation in the meaning of Article 471 of the Civil Code. In this case, we are dealing with the improper performance of obligations resulting from legal actions in the form of consumer contracts.
The judgements of the Regional Court in Lodz published on the website were downloaded from the Portal of Judgements of Common Courts (https://orzeczenia.ms.gov.pl/), and then processed by the entity operating this website by adding theses, deleting data of the group members, visual compilation and removing punctuation and literal errors. The judgements have been translated by the entity operating this website.
